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July 01, 2019

Federal Government Seeks to Resume Executions After Nearly Two Decades

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On July 25, 2019, Attorney General William Barr announced via press release the federal government’s intention to “resume capital punishment” by scheduling executions for five federal prisoners. Although the federal death penalty system has been in place since 1988, and 61 individuals are currently on federal death row, there have only been three federal executions in the last five decades, the most recent carried out in 2003. If the currently scheduled executions proceed as planned, the total number of federal executions carried out by the United States in the modern death penalty era would nearly triple in just one month.

United States Penitentiary, Terre Haute, IN

Wikimedia Commons

In his statement directing the head of the Bureau of Prisons (BOP) to schedule the five executions, Attorney General Barr directed the BOP to adopt an addendum to the current federal execution protocol. The addendum specifies replacing the existing three-drug protocol, which has been the subject of litigation in federal court since 2005, with a protocol using only a single dose of the drug pentobarbital. Pentobarbital is currently used in lethal injections in Texas, Missouri, and Georgia. The Justice Department has filed a copy of the addendum in the federal district court where the current lethal injection protocol is being litigated, and the judge presiding over that lawsuit has set a discovery schedule relating to the new protocol. However, the five people scheduled to be executed were not parties to that litigation and--unlike the petitioners in that case--were not covered by stays of execution. Although the discovery schedule extends well past the current December and January execution dates, the government has opposed a request for stay of execution filed in connection with the lethal injection litigation.

[M]ore conservatives have come to realize that capital punishment conflicts irreconcilably with their principles of valuing life, fiscal responsibility and limited government.

Jared Olsen (R)

Wyoming House of Representatives

The move to kickstart federal executions has sparked nationwide debate, with many, including prominent conservatives, criticizing the federal death penalty system as arbitrary, racially discriminatory, and rife with many of the same counsel failures seen in state capital punishment systems. Jared Olsen, Republican member of the Wyoming House of Representatives, wrote that “more conservatives have come to realize that capital punishment conflicts irreconcilably with their principles of valuing life, fiscal responsibility and limited government.” Experienced capital defense attorneys also point out that federal death penalty cases do not receive the same comprehensive review as state death penalty cases, noting that the U.S. Supreme Court has rarely heard federal death penalty cases on appeal. This fact undermines the reliability of federal death penalty cases and limits opportunities for prisoners to bring claims of ineffective assistance of counsel, which remains a persistent problem in both state and federal death penalty cases.

As with state capital punishment systems, racial bias is a serious concern in the federal death penalty. In 1988, the Anti-Drug Abuse Act was passed, which allowed federal prosecutors to seek the death penalty against individuals involved in certain drug trafficking activities. Studies today show that among all defendants selected for capital punishment in prosecutions under this Act, 89% were either African American or Hispanic. In 1994, the Federal Death Penalty Act expanded the list of federal death-eligible crimes even further, allowing the federal government to prosecute more capital crimes that ordinarily would have been handled by the states. As a result, scholars have found that a “disproportionate number of federal death sentences are located in districts where the decision to prosecute federally transformed the jury pool from predominantly black to predominantly white.”

The current administration has indicated its desire to expand the federal death penalty once again, to make drug trafficking, domestic terrorism, mass shootings, and killing a state law enforcement officer capital offenses under federal law. In 2017, the “Thin Blue Line Act,” which would make the killing of a state law enforcement officer or first responder a death-penalty-eligible federal crime, passed the House. At the same time, however, two bills to abolish the federal death penalty have been introduced in Congress since 2016.